The 9th Circuit has stymied every attempt by the State of Arizona to identify and return illegal aliens who illegally entered this country. If the federal government, which insists on unqualified immigration jurisdiction, would adopt Arizona statutes the immigrant issue would be resolved. In Maricopa County 8 years ago the citizens enacted a statute by referendum denying bail for persons arrested and detained for determination of legal status. Obviously an illegal alien is likely to flee after arrest and incarceration if bail is unnecessary. Not according to a 9th Circuit panel denying enforcement of the Arizona statute on an en banc hearing reversing the three judge panel that had enforced the law; 770 F.3d 772 (2014).
The naiveté of this court is incomparable. Does anyone think a person in detention will not flee as soon as he is released because of his illegal status in the country? The 9th Circuit court, using the old worn out, all purpose policy excuse of the Due Process Clause, invalidated the statute. The County sought a stay of the order but the Supreme Court denied the petition. Justice Thomas commented:.
Statement of Justice THOMAS, with whom Justice SCALIA joins, respecting the denial of the application for a stay.
“Petitioner [Maricopa Co.] asks us to stay a judgment of the United States Court Appeals for the Ninth Circuit holding unconstitutional an amendment to the Arizona Constitution that the State’s citizens approved overwhelmingly in a referendum eight years ago. I join my colleagues in denying this application only because there appears to be no “reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari.” Hollingsworth v. Perry, 558 U.S. 183, 190, 130 S.Ct. 705, 175 L.Ed.2d 657 (2010) (per curiam). That is unfortunate.
We have recognized a strong presumption in favor of granting writs of certiorari to review decisions of lower courts holding federal statutes unconstitutional. See United States v. Bajakajian, 524 U.S. 321, 327, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998); United States v. Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). States deserve no less consideration. See Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1177, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996) (SCALIA, J., dissenting from denial of certiorari: (“This decision is questionable enough that we should, since the invalidation of state law is at issue, accord review”). Indeed, we often review decision striking down state laws, even in the absence of a disagreement among lower courts. See, e.g., Hollingsworth v. Perry, 570 U.S. ––––, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013); Cook v. Gralike, 531 U.S. 510, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001); Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999); Renne v. Geary, 501 U.S. 312, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991); Massachusetts v. Oakes, 491 U.S. 576, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989). But for reasons that escape me, we have not done so with any consistency, especially in recent months. See, e.g., Herbert v. Kitchen, ––– U.S. ––––, 135 S.Ct. 265, ––– L.Ed.2d –––– (2014); Smith v. Bishop, ––– U.S. ––––, 135 S.Ct. 271, ––– L.Ed.2d –––– (2014); Rainey v. Bostic, ––– U.S. ––––, 135 S.Ct. 286, ––– L.Ed.2d –––– (2014); Walker v. Wolf, ––– U.S. ––––, 135 S.Ct. 316, ––– L.Ed.2d –––– (2014); see also Otter v. Latta, ––– U.S. ––––, 135 S.Ct. 345, –––L.Ed.2d –––– (2014) (denying a stay); Parnell v. Hamby, ––– U.S. ––––, 135 S.Ct. 399, ––– L.Ed.2d –––– (2014) (same). At the very least, we owe the people of Arizona the respect of our review before we let stand a decision facially invalidating a state constitutional amendment. Of course, the Court has yet to act on a petition for writ of certiorari in this matter, and I hope my prediction about whether that petition will be granted proves wrong. Our recent practice, however, gives me little reason to be optimistic.”
Justice Thomas is correct. The referendum was enacted by Arizona voters contingent on state sovereignty. The Supreme Court may understandably agree the federal government exercises jurisdiction on who may enter the country, but once a person is inside country borders state sovereignty exists, and the people decide requirements for residence.
- Scalia, Hon. Antonin Gregory